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In 1941, after decades of struggling to hold on to the remainder of their aboriginal home, the Hualapai Indians finally took their case to the Supreme Court—and won. The Hualapai case was the culminating event in a legal and intellectual revolution that transformed Indian law and ushered in a new way of writing Indian history that provided legal grounds for native land claims. But Making Indian Law is about more than a legal decision. It’s the story of Hualapai activists, and eventually sympathetic lawyers, who challenged both the Santa Fe Railroad and the U.S. government to a courtroom showdown over the meaning of Indian property rights—and the Indian past.
At the heart of the Hualapai campaign to save the reservation was documenting the history of Hualapai land use. Making Indian Law showcases the central role that the Hualapai and their lawyers played in formulating new understandings of native people, their property, and their past. To this day, the impact of the Hualapai decision is felt wherever and whenever indigenous land claims are litigated throughout the world.
No one knows just how long the Hualapais have lived in the northwestern corner of the Colorado Plateau. Science tells us one thing, and Hualapai origin stories another. Anthropologists and archaeologists disagree about just where the Hualapais came from: some scholars say they came from the west and the south when Yuman speakers of the Colorado river delta began to spread out around A.D. 1; others argue that the Cerbat people who preceded the Hualapais, after oscillating between nomadism and sedentism as the climate shifted from wet to dry periods between A.D. 850 and 1250, eventually settled, started to farm, and became the Hualapais; still others suggest that they were formed in situ, an amalgamation of several cultures. Making matters more confusing, a gap in the archaeological record between 1150 and 1300 suggests that what is now Hualapai country was abandoned along with many other areas in the uplands of the Colorado Plateau. Although archaeologists may never know where the Hualapais came from, most agree that by roughly 1300 they had arrived and were firmly in place.
The Hualapais tell a different story-and offer an interesting example of the possibleoverlaps between scientific theory and Indian origin stories. According to the Hualapais, they come from Wikame, a mountain to the west of the reservation in present-day Nevada. Shortly after Kathat Kanave made all Indian people-Mojaves, Yavapais, Hopis, Paiutes, Navajos, Havasupais, Chemehuevis, and Maricopas-they began to quarrel. They went their separate ways, splitting into tribes. First the Mojaves and then the Paiutes left the fold. The remaining peoples moved east to Madwida, the sacred canyon in the northwestern area of today's reservation. Slowly, the people dispersed, some in peace, some not. The Hopis went east, and as they went a small group stayed behind in Cataract Canyon and became the Havasupais. When Madwida became crowded, more quarreling erupted. From within the ranks of people left in the canyon the Yavapais and the Hualapais became enemies. The Hualapais chased out the Yavapais, banishing them to the southeast. From then on, only the Hualapais lived in Madwida. The canyon is where they were born. But they, too, did not all stay in the canyon. They split into bands but remained one people-on this they and most scholars agree.
Before contact the Hualapai world was enormous in geographical scale and in human diversity. Trade was so well developed that up to one-quarter of Hualapai pottery goods were imported from elsewhere. And the Hualapais, like just about all native peoples in the Southwest, were involved in the horse trade and to a lesser extent the slave trade and had been since at least the late eighteenth century. Horses came from Navajos and Hopis to the east, Mojaves to the west, and Paiutes and Utes to the north. This extensive trade network encompassed more than horses. The Hualapais acquired European goods from the Hopis as early as the late eighteenth century. Trade likely began much earlier between the Hopis mesas and people to the west. According to Spanish sources, the Hopis referred to the Coninas-the Hopis' generic term for the Hualapais and the Havasupais-as early as 1665. Via the Mojaves came shells from the Chumash on the Pacific coast. Shells were prized among the Hualapais and perhaps were akin to wampum in the East. To the more immediate west, just across the Colorado River, they exchanged corn for meat with the Mojaves. On occasion they acquired horses from and married the Mojaves. To the north, the Colorado River and the Grand Canyon made trade difficult but not impossible. Shivwit Paiutes and Hualapais built rafts to cross the Colorado, meeting regularly in the Grand Canyon to trade-the Shivwits provided guns and horses and the Hualapais brought hides and sometimes Mojave horses. Relations were friendly enough that for a time in the 1850s a group of Paiutes fleeing the Mormons lived with Ha'Kasa Pa'a (Pine Springs band) Hualapais, and on occasion Shivwit men and Hualapai women married. To the south, the Hualapais acquired goods from the Yavapais through raiding, not trading; marriage was off-limits.
Trade tied the Hualapai to a large network of native peoples. They acquired vital and necessary goods through their far-flung contacts. But the Hualapais made their living largely by hunting, gathering, and farming. Their calendar revolved around agriculture and the harvesting of wild plants. Hundreds of years of accumulated knowledge allowed them to take advantage of a vast array of plants that might have appeared to others as useless. Contained within their territory was a virtual pharmacy, a wild vegetable garden, and a hardware store. The leaves of the globe mallow, for example, could be cut and dried and then brewed as a tea for a sore throat. Like the inner bark of the cliff rose, which worked well for making sandals and for lining sweat lodges, globe mallow was collected as needed. The Hualapais gathered other wild plants on a fairly strict seasonal schedule. The fall was a major harvest season for agricultural products and wild plants. Black walnuts were roasted and eaten and were also used to make dye. I'ko', or pinyon trees, yielded one of the staples of the Hualapai diet, ko', or pinyon nuts. The collecting of ko' was the cause for major movement to higher elevations in the fall. Women, for the most part, collected, roasted, dried, and stored the cones, and the nuts were used to make soup or ground into a paste. Families worked hard to gather enough ko' to last the winter. By the first decade of the twentieth century, ko' was not only a staple of the Hualapai diet but was also part of the cash economy. Hualapai women collected bushels of pine nuts and sold them to local Anglos and travelers. Selé, a staple of the aboriginal diet and high in carbohydrates and fat, was collected in late May and June.
Water for farming, though not abundant, was plentiful. Every major canyon south of the Colorado that fed into the Grand Canyon contained springs. Madwida, Quartermaster, Spencer, Milkweed, Peach Springs, and Diamond Creek Canyons all were scenes of productive agriculture, as was the plateau region around Pine Springs in the eastern portion of Hualapai country. Wherever water was found so, too, was agriculture. Corn, pumpkins, watermelons, and beans were planted in the canyons in the late spring and harvested in the fall. Agriculture was important to all Hualapais but likely was a greater source of food for those who lived on the upland plateau than for those who lived in western Hualapai territory. The plateau country provided more ready access to the well-watered canyons, whereas the desert basins had a more abundant supply of harvestable wild plants.
Although Hualapai pre-contact history is by no means completely clear, post-contact history is well documented-at least as far as the history of Indian-white relations is concerned. On June 10, 1776, the Hualapais had their first known contact with the non-Indian world. Leaving Tucson's Mission San Xavier del Bac sometime in January or February, Fray Francisco Garcés spent the winter and summer alone, exploring the greater Colorado River region. In June, heading east and north from Mojave country in what is now southeastern California, he crossed the Colorado and began a roughly six-week tour of Hualapai, Havasupai, and Hopi land. It is from Garcés's sparse diary entries, which yield just enough information to leave a reader begging for more, that we first learn about the Hualapais. We don't learn much: he says that they already knew about the Spanish from their friends and neighbors the Hopis (two of whom were visiting the Hualapais when Garcés turned up); they don't farm (not true); and they're spread out in small bands across a large territory. Garcés and the Hualapais drew maps for each other in the sand. The Hualapais showed Garcés the "nations of the vicinity"; he sketched a map of his route. And though Garcés gained a "clear understanding of the situation of all the nations," we know nothing. One can only imagine what the Hualapai map contained.
Later explorers revealed only a little more. Although their sometimes ugly utterances about the Hualapais might call into question their reliability, they are the only sources available-Hualapais would create no written documentation about themselves until the twentieth century. Some speculate that the mountain man and trapper Bill Williams spent time with them in the early 1830s, but it was not until the 1850s that Anglos began heading into Hualapai country on a regular basis. In a flurry of visits that must have signaled to the Hualapais the advent of great change, four government-sponsored expeditions, all charged with exploring what remained a virtual terra incognita until the late nineteenth century, journeyed across Hualapai territory in rapid succession in the 1850s. Lorenzo Sitgreaves (1852), Alexander Weeks Whipple (1853), Edward Beale (1857), and Joseph Christmas Ives (1858) all caught glimpses of the Hualapais while they variously sought out the best train route to the Pacific or explored the meanderings of the Colorado River. Ives relied on Hualapais to help him navigate the intricacies of the "Big Cañon," but the others had little or no significant contact with them. Catching little more than occasional glimpses of them, the explorers gave them little thought, and the impact of these visits appears to have been fleeting. To Ives, for example, the Grand Canyon region was a wasteland best left alone. The grizzly bears of the region made "a capital soup," but there was little else of value. Convinced that his expedition had "been the first, and will doubtless be the last, to visit this profitless locality," Ives wrote the region off.
Ives was, of course, wrong. In the 1860s, when army officers such as J. W. Mason and William Redwood Price were fighting Indians in earnest, the Hualapai began to have significant contact with the Anglo world. After gold was found, a stream of miners set their sights on Hualapai country. The founding of Prescott, the reinvigoration of Fort Mojave, across the Colorado, the construction of Fort Whipple, and the near constant wagon road traffic all brought rapid change. The murder of Hualapai leader Wauba Yuma in 1866 set off the Hualapai War, a guerrilla war that alternately simmered and boiled for the next three years. It was a ruthless campaign fought in the arid valley of western Hualapai country and the tight canyons in the center of their territory in the extreme heat of July and the snow of January. Gun battles did less damage to the Hualapai than the destruction of resources-any later suggestion that they were not farmers could easily be dismissed by the reports of army officers who destroyed cornfields. War not only pitted Indians against the United States. It also stressed relationships among Indians: the Mojaves and the Hualapais, longtime friends, briefly became enemies as the army enlisted Mojaves in its fight with the Hualapais; Yavapai-Hualapai enmity reached new heights; and Paiutes to the north, heretofore shielded from the army by the Colorado River, were drawn into the regional war. For Indians in the greater Colorado River region, it must have seemed as if the world was at war.
After heavy losses, the Hualapais signed a peace agreement in 1868. By this time, too, many of them had taken a new view of the army. Under the command of Captain Thomas Byrnes, the army founded Camp Beale's Springs on the outskirts of Kingman in 1871 as a buffer between Hualapais and Anglos. With their subsistence so badly disrupted by Anglo ranching-their hunting and farming grounds had all but been taken away-the Hualapais became dependent on army rations. Soon thereafter many Hualapai men became scouts in the war against the Apaches. Fighting, perhaps, for a paycheck or because of lost honor, boredom, coercion, hatred of the enemies to the south -we are likely never to know their motivations-at least 140 Hualapai men joined the army. Then, in 1874, the same army, following the wishes of the BIA, removed them from their homes against their will and sent them south to bake in the desert of the Colorado River lowlands, a place the officer in charge called the "Sahara of the Colorado." Many went, but some stayed, hiding out in the Grand Canyon. When those who left could no longer stand it, they returned home. The tribe's stay lasted less than a year, but it suffered heavy losses from disease, exposure, and malnutrition. This was the Hualapais' long walk.
When they returned to their home, the Hualapais found much of the land occupied by miners and ranchers. Indeed, according to Mason, "every stream, water-hole, and square foot of arable land [is] taken up by white men, and the Indian has no place to call his own." And, again, many men scouted. Anglo ranchers and a new threat, the Atlantic and Pacific Railroad, generated a sense of urgency among the Hualapais. They needed a reservation. It remains impossible to say whether they knew exactly what "reservation" meant. It is certain that they wanted a specific piece of land to be protected. Able to see the damage done by the arrival of Anglo-owned cattle-the usurpation of springs, a drastic reduction in game due to overgrazing, and the destruction of selé, which rapidly declined as Hualapais stopped setting the seasonal fires that encouraged its growth and cows moved in-the tribe wanted to stem further losses. And now the railroad, fast moving across Arizona and headed straight for Hualapai country, soaked up whatever water it could find. Major General O. B. Willcox, as he sat watching the tracks of the Atlantic and Pacific Railroad-the Santa Fe's predecessor-make their way west of Albuquerque in 1881, observed that the "railroad now progressing through the country [the Hualapais] inhabit ... is giving rise to new complications."
The tribe knew that its land needed protection. In July 1881 a "majority of the tribe," including Cherum and other important headmen, met with Price and asked for a reservation. Aided by one Charles Spencer, the Hualapais marked out a territory that included key places in their aboriginal homeland. A shadowy figure who spent the late 1860s fighting the tribe, Spencer was first a foe and then a friend. After the army defeated the Hualapais, he joined them, marrying a Hualapai woman named Snyje. Calling himself a guide, Spencer acted as an interpreter and spokesman for the Hualapai.
Though little is known about him, Spencer was, without question, of singular importance-contemporary opinion suggested that he was instrumental in creating the reservation and possibly unifying the tribe. By the summer of 1882, the largest Hualapai band, numbering 215, lived in Madwida Canyon, some congregating around Spencer's Ranch. That fall, as he watched ranchers and the railroad approaching, he lamented that "our Country is filled up with thieves and desparadoes." Knowing that Peach Springs, the largest and most important spring in Hualapai country, would soon be coveted by the railroad, Spencer built a stone monument at the spring. A pile of rocks and a sign could not stem the tide, but it could at least stake the Hualapais' claim. Many contemporaries recalled that Spencer played a critical role in making clear the tribe's claim to Peach Springs. When Jim Fielding, a prominent Hualapai headman until his death in 1936, was a teenager, he said that when the Hualapais returned to their homes from their internment at La Paz to find that their water sources had been "taken by the new comers," he and Spencer traveled throughout Hualapai country to mark "a piece of land as an Indian Claim against the new comers." Mike Sue, Nora Schrum, and Jim Smith-Smith claimed to be an eyewitness-all remembered that Spencer put up the sign claiming Peach Springs for the tribe. His wife Snyje went further, claiming that he worked hard to shield Peach, Milkweed, and Pine Springs from white encroachment. And W. F. Grounds, one of the earliest white ranchers, claimed that Spencer negotiated with the army and was, in part, responsible for setting aside the reservation.
Spencer helped the Hualapais get the army's attention, but it remains uncertain exactly how much he worked with them to map out the boundaries of the reservation. Included in the Hualapais' request for a reservation were important springs, as well as the core areas of most of the tribal bands. Beginning at Tinnakah (later Clay) Springs, the boundary would run north to the Colorado River, south and east two miles south of Peach Springs, and far enough into the eastern portion of Hualapai country to include Pine Springs. The half of the reservation that was west of Peach Springs is drier and lower in elevation than the well-watered and heavily timbered eastern half. Although the eastern half would eventually become more important economically-and thus desired by both the railroad and the Hualapais-both halves of the reservation preserved parts of the Hualapais' ancestral land.
Excerpted from Making Indian Law by CHRISTIAN W. MCMILLEN Copyright © 2007 by Yale University. Excerpted by permission.
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Part I Keeping the Country Whole
1 The Hualapais 3
2 The Conflict 12
3 The Hualapai Awakening 17
4 The Government Versus the Hualapais 36
5 Taking Hualapai Land 50
6 Writing Indians out of Their Land 59
7 The Hualapais and History 71
8 Land and Law 86
9 Saving Hualapai Land 104
Part II Making Indian Law
10 Building a Case 125
11 The Case in Court 144
12 The Supreme Court and the Power of History 159
13 In the Wake of Hualpai 166